SUPERINTENDENT AND REMEMBRANCER OF LEGAL AFFAIRS Vs. DBFUTNANI

JUDGEMENT

(1.) This is an appeal by the Superintendent and Remembrancer of Legal Affairs, Bengal, against an order of the Chief Presidency Magistrate, Calcutta, acquitting two persons, D.B. Futnani and A.V. Joshi of offences under Rule 75A (7) and 46(3), Defence of India Rules. The prosecution case is that D.B. Futnani is a partner of the firm of Murlimal Santram and Co., having its Head Office at Lachmidass Street, Karachi, and A.V. Joshi is the Calcutta Manager or representative of the Firm, having his office at 20 Muharshi Debendra Road, Calcutta. Application for a licence to import 25 tons of barbed wire from America was made by the firm in Karachi to the Steel Controller, Calcutta, by Ex. 1, signed in the firm name, the writing having been proved by the handwriting expert (P.W. 2) to be the hand of Futnani. Import licence No. 4216 was duly issued by the Deputy Steel Controller on 3 November, and was received by Major Thomas (P.W. 7), Deputy Controller of Purchase, along with the application With a view to requisitioning the goods he forwarded these papers to the Controller of Supplies by his letter Ex. 2, dated 5 November, asking him to issue the licence and at the same time to take action to freeze the stock On receipt of this letter, Ram Krishna Das (P.W. 1) senior clerk of the office of the Controller of Supplies telephoned to the Calcutta Office of the firm; and about 10 November, Joshi came and interviewed Mr. Shefta, Assistant Controller of Supplies, saying he knew nothing about the matter and could not give the particulars asked for. On 12 November, the Controller of Supplies, Bengal Circle, wrote to the Calcutta Branch a letter (Ex. 4) asking for certain particulars adding that the licence would only be issued on the particulars being furnished. On 14 November, Joshi replied by Ex. 5 signing his own name per pro the firm saying, that he knew nothing about the matter and that the original letter of the Controller had been directed to the Karachi Head Office for early compliance. The particulars were duly supplied in a letter (Ex. 6) dated 21 November, from the Karachi Head Office, signed in the name of the firm, in Futnani's handwriting. There was a request that all enquiries of this nature should be referred to Karachi. On 21 November Joshi wrote a letter (Ex. 7) asking that the licence might be granted. On 24 November the licence was forwarded to Joshi with the letter Ex. 10, issued by the Controller of Supplies, which contained a request that after the goods had been cleared, all the documents, invoice, customs receipt for import, etc., should be brought to the office of the Controller. The letter was received and acknowledged by Joshi on 25 November (EX. 10/1). On the same day a freezing order, signed by Col. Marriott, Controller of Supplies, issued under Rule 83(8a), Defence of India Rules, dated 22nd November, and relating to the consignment of 25 tons was served. The original order Ex. 8/1 was subsequently seized by the police from Joshi's office, and he acknowledged receipt of it by Ex. 9. The order was addressed to "Murlimal Santram and Co., 20 Maharshi Debendra Road, Darmahatta, Calcutta;" it demanded information as to the stock received by S.S. Frederick Lukes, and directed. that you or your agent, shall not, except with my permission or under my directions, dispose of the said articles till the expiry of the thirty days from the date of this order.

(2.) On 27 November Joshi furnished the information required in the freezing order, adding We are expecting these goods shortly in our godown, and as soon as they come in our godown, we shall not part with them till the time specified by you in your aforesaid order. On the same day he acknowledged by his letter Ex. 12 the receipt of the import licence, agreed to show the documents as requested in the letter EX. 10 of 24th November, and added When the goods arrive in our godown, they will be kept reserved for you till we hear further from you. Delivery of the goods was taken by the firm on 28 November, and they were stored in a godown hired from the Port Commissioners at Sahib Bazar. On the 8 December, Joshi came to the office of the Controller of Supplies and interviewed Mr. Shefta; at that time he said he could not give the information required by the Controller's letter of 24 November (Ex. 10). A reminder, mentioning the interview, was sent to him on 12 December, (EX. 18). In reply to this he wrote the letter Ex. 14, dated 13 December, stating that a telegram had been received from his head office informing him that one of the partners was starting on Sunday 14 December for Calcutta, "that he would handle the matter personally and satisfy the Controller with all the information called for in the letter of 24th November. As the period of the first order was about to expire, a second freezing order was issued on 20 December (Ex. 16) for a further period of 30 days. This was received and acknowledged by Joshi (Exhibit 16/1.)

(3.) On or about 29 December, the two accused came to the office of the Controller of Supplies and handing the letter Ex. 18, they interviewed Mr. Shefta in the presence of the clerk P.W. 1. Futnani stated the facts as set out in the letter in the presence of Joshi. About the same time Futnani interviewed Col. Fowler, Chief Controller of Purchase in the presence of Major Thomas (P.W. 7), and stated the facts substantially as they appear in the letter Ex. 18. The purport of this letter was that as the freezing order was about to expire, and there had been no requisition, Joshi had wrongly believed that the goods were not required by Government, and as he stood in urgent need of money and there was panic prevailing in the market at the time, and as telegraphic communication between Calcutta and Karachi was not normal our this representative here, in order to raise money to meet his at hand financial engagements, delivered away this small quantity of 25 tons to the party to whom these were sold by our Head Office in Karachi as long ago as 29 July 1940. The letter went on: No doubt this is an act we highly deprecate but this having been done in the circumstances explained to save our existence here, we cannot do more than to warn our representative here to be more careful in future. The letter also contained an offer to supply the goods by purchasing them from the local market where they were said to be available in abundance, and to bill for them at the price paid without claiming any profit whatsoever. On 31 December Joshi wrote to the Controller of Supplies to confirm the interview Futnani had with Col. Marriot and Col. Fowler, and stating that Futnani had instructed him to purchase the goods from the local market, and to furnish the bill to the Controller, leaving it to him solely to pay the price considered fair, adding should we not be able to pick up the material from market, we shall carry out your order and meet our liability by buying the goods from other markets, or from the person we had delivered to, and thus deliver the full quantity of 25 tons. This was acknowledged by the Controller of Supplies letter dated 20 January (EX. 20) wherein he stated: Without prejudice to my rights to proceed against the firm for violating the requisition (sic) duly made under the rules framed under the Defence of India Act and to recover the loss caused thereby, I confirm that I have given you liberty to supply the goods which were disposed of wrongfully by you by buying the same from the local market or elsewhere, leaving the question of the price to be paid in respect thereof to me solely according to my discretion on a consideration of all the facts and circumstances --it being understood that the entire quantity of the goods requisitioned will have to be supplied by such purchase whether from the local market or elsewhere and within a reasonable time not exceeding one month from the date hereof. A reminder to this was sent on 29 January (Ex. 21). Futnani replied, signing the name of the firm by Ex. 22 on 3 February, resiling from the previous arrangement agreeing to supply the goods only on payment of the firm's cost price, plus a reasonable percentage as remuneration. Thereafter, the present case was started, the goods in question were eventually requisitioned, after they had been found on 16 September 1942 in the Port Commissioner's godown in Sahib Bazar where they had remained all along. On the above facts, a charge was framed against Joshi as manager of the firm for having between 22 November, 1941, and 8 January 1942, contravened the orders Exs. 8 and 16, namely the freezing orders of 22nd November, and 20 December. Futnani was charged as partner of the firm in the alternative with having contravened the orders, or with having abetted the contravention. Futnani was also charged with having between 20th December-31 December made a statement in Ex. 18 having reasonable cause to believe that the act or statement was likely to mislead Major Thomas in the discharge of his lawful functions in connection with the Defence of British India or for securing the public safety, and thereby having committed an offence punishable under Rule 46(3) read with Rule 46(2) (d), Defence of India Rules.